SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

116 

CA 11-01127 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ. 

 

ANN M. SAWYER AND JEFFREY M. SAWYER, 

PLAINTIFFS-APPELLANTS,

V MEMORANDUM AND ORDER

VICTOR RUTECKI, THE RUTECKI AGENCY AND WNY 

AGENTS GROUP, INC., DEFENDANTS-RESPONDENTS.

(APPEAL NO. 2.) 

 

HODGSON RUSS LLP, BUFFALO (HEATHER K. ZIMMERMAN OF COUNSEL), FOR

PLAINTIFFS-APPELLANTS. 

KEIDEL, WELDON & CUNNINGHAM, LLP, SYRACUSE (CHRISTOPHER B. WELDON OF

COUNSEL), FOR DEFENDANTS-RESPONDENTS.

 

Appeal from a judgment of the Supreme Court, Erie County (Joseph

R. Glownia, J.), entered April 14, 2011. The judgment dismissed

plaintiffs’ complaint on the merits. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs, the owners of an apartment building in

Buffalo that was damaged in a fire, commenced this action asserting

causes of action for breach of contract, breach of fiduciary duty and

negligence premised upon defendants’ alleged failure to notify

plaintiffs that their insurance policy for the premises had been

cancelled prior to the fire and their failure to procure new coverage. 

Victor Rutecki (defendant) was plaintiffs’ insurance agent, and the

remaining defendants are his associated business entities. At

plaintiffs’ request, defendant procured insurance for the premises

from Allegany Co-Op Insurance Company (Allegany). Shortly after the

subject policy was issued, Allegany sent an inspector to examine the

property for underwriting purposes. Following that inspection, which

revealed problems related to the condition of the property, Allegany

cancelled the insurance policy. In support of their motion,

defendants submitted evidence that Allegany sent a letter to

plaintiffs by certified mail notifying them of the cancellation, and

plaintiffs thereafter failed to obtain new coverage. Less than eight

months later, the subject fire caused extensive damage to the

uninsured property. 

We conclude that Supreme Court properly granted defendants’

motion for summary judgment dismissing the complaint. Although
-2- 116 

CA 11-01127 

“insurance agents have a common-law duty to obtain requested coverage

for their clients within a reasonable time or inform the client of the

inability to do so[,] . . . they have no continuing duty to advise,

guide or direct a client to obtain additional coverage” (Murphy v

Kuhn, 90 NY2d 266, 270). “Exceptional and particularized situations

may arise in which insurance agents, through their conduct or by

express or implied contract with customers and clients, may assume or

acquire duties in addition to those fixed at common law” (id. at 272). 

For instance, where a “special relationship” develops between an agent

and the insured, the agent may be held to have assumed duties in

addition to merely “obtain[ing] requested coverage” (id. at 270). 

Such a special relationship may arise where “(1) the agent receives

compensation for consultation apart from payment of the premiums . . .

(2) there was some interaction regarding a question of coverage, with

the insured relying on the expertise of the agent . . .; or (3) there

is a course of dealing over an extended period of time which would

have put objectively reasonable insurance agents on notice that their

advice was being sought and specially relied on” (id. at 272). 

Here, defendants met their initial burden on the motion, and

plaintiffs failed to raise a triable issue of fact to defeat it (see

generally Zuckerman v City of New York, 49 NY2d 557, 562). 

Specifically, defendants established that defendant did not have a

special relationship with plaintiffs by submitting evidence that

defendant received no compensation from plaintiffs over and above the

commissions he received for the insurance policies he had procured,

that plaintiffs did not use defendant as their exclusive agent, and

that Jeffrey M. Sawyer (plaintiff) retained final decision-making

authority over what coverage to obtain. Even accepting as true

plaintiffs’ allegations that they informed defendant that plaintiff

had health issues and that plaintiff referred to defendant as his

“insurance guy,” we conclude that the uncontroverted evidence

establishes that the interactions between the parties “would [not]

have put [an] objectively reasonable insurance agent[] on notice that

[his or her] advice was being sought and specially relied on” (Murphy,

90 NY2d at 272). We note that plaintiffs had known defendant for only

three years prior to the fire, and that defendant had obtained

insurance coverage for only three of the six rental properties owned

by plaintiffs. 

We also reject plaintiffs’ contention that defendant was

negligent in failing to inform them that the policy had been

cancelled. Defendant satisfied his duty to plaintiffs by procuring

the Allegany policy, and no further duty was imposed on defendant

based on the subsequent cancellation of the policy (see Thompson &

Bailey, LLC v Whitmore Group, Ltd., 34 AD3d 1001, 1002-1003, lv denied

8 NY3d 807). Moreover, as noted, defendants submitted evidence that

Allegany notified plaintiffs of the policy cancellation by certified

mail, and plaintiffs failed to overcome the presumption of receipt

that attaches to such mailing (see generally Nassau Ins. Co. v Murray,

46 NY2d 828, 829-830). 

Entered: February 10, 2012 Frances E. Cafarell

Clerk of the Court